The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Discussions of the Freedom of the Press as Protecting Non-Press-as-Industry Writers (America)

"Freedom of the press," as I've argued in earlier posts, was understood as protecting the freedom of all to use the printing press -- not just a freedom of the profession or industry that we might call "the press."


In this post, I'm continuing my series on "Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today," based on my Penn Law Review article. Here, I'll discuss nine early cases that show that courts and lawyers during the early years of the Republic understood the freedom of the press as extending to authors regardless of whether they were members of the press-as-industry. Though the American cases follow the drafting of the First Amendment by one to five decades, they are entirely consistent with the 1700s evidence discussed above. I have seen no reason to think there was some change from a press-as-industry understanding in the 1700s to a press-as-technology understanding as shown in those cases.

[1.] United States v. Cooper (1800)

One of the leading cases under the Sedition Act of 1798 involved the prosecution of Thomas Cooper for publishing a one-page handbill criticizing President Adams. At the time of the trial, Cooper was not a member of the institutional press. He had edited the Northumberland Gazette for two months, but that task had ended four months before the leaflet was distributed. Moreover, the leaflet that led to his prosecution was unrelated to his past editorial tasks.

Yet the trial was seen as implicating the freedom of the press. In response to the argument that his leaflet diminished the confidence of the people in the government, Cooper argued to the jury that this confidence should be earned, and not "exacted by the guarded provisions of Sedition Laws, by attacks on the Freedom of the Press, by prosecutions, pains, and penalties on those which boldly express the truth." He went on to say that "in the present state of affairs, the press is open to those who will praise, while the threats of the Law hang over those who blame the conduct of the men in power." Later, complaining about the court's requiring him to produce certain original documents to support his defense, he argued that such requirements "would be an engine of oppression of itself sufficiently powerful to establish a perfect despotism over the press."

And Justice Samuel Chase's charge to the jury seems to support the notion that the prosecution involved "the press," which in context must have meant use of the press-as-technology and not the press-as-industry. Seditious libel prosecutions, Chase argued, were proper because

[a] republican government can only be destroyed in two ways; the introduction of luxury, or the licentiousness of the press. This latter is the more slow but most sure and certain means of bringing about the destruction of the government. The legislature of this country knowing this maxim, has thought proper to pass a law to check this licentiousness of the press—by a clause in that law it is enacted (reads the second section of the sedition law).

Others also characterized Cooper's prosecution as involving "the freedom of the press." John Thomson echoed Cooper's assertions that his prosecution violated the freedom of the press in An Enquiry, Concerning the Liberty, and Licentiousness of the Press (1801):

What was James Thomson Callender pros[e]cuted for at Richmond? For publishing his opinions through the medium of the Press. What was Charles Holt, the Editor of the New London Bee, prosecuted for? Because he published the opinions of another person. What was Thomas Cooper prosecuted for? For publishing his opinions through the same mode of communication:—viz. the Press…. [T]he Constitution has been violated, both by the Sedition law under which they were convicted, and by the prosecutions themselves.

And the following year, John Wood's History of the Administration of John Adams (1802) likewise stated,

The prosecutions of Lyon and Callender, of Cooper and Holt, are the best commentary upon the Sedition law. The names of these gentlemen will be quoted in support of the liberty of the press, and of the tyranny of Mr. Adams, when the labored arguments of Paterson and Peters, of Iredell, Addison and Chase, are no longer remembered.

Thompson and Wood discussed Cooper, who had a leaflet printed for him, the same way they discussed Lyon, Callender, and Holt, who published their libels in the newspapers they edited.

[2.] Impeachment of Justice Chase (1805)

Five years later, Justice Chase found himself as a defendant in an impeachment proceeding. The House prosecution argued that Justice Chase had misbehaved in criticizing the administration from the bench.

In the course of the trial, one of the managers of the prosecution, Congressman John Randolph—the leader of the House Democratic-Republicans —noted that his only objection was to "the prostitution of the bench of justice to the purposes of an hustings" and "declaim[ing] on [political topics] from his seat of office." Randolph stressed that he was not objecting to any extrajudicial publications that Chase might produce: "Let him speak and write and publish as he pleases. This is his right in common with his fellow citizens. The press is free." Thus, Chase—not a member of the press-as-industry—was seen as being free to, "in common with his fellow citizens," "publish as he pleases" using the "free" "press."

Unlike in the other cases in this subsection, the only statement about the "press" in this case came from an advocate, not from a judge. But Randolph had little to gain by using a controversial definition of "free" "press," or by trying to broaden the liberty of the press beyond its established boundaries. Indeed, he had something to lose, since using a controversial definition would have made his argument less persuasive. His willingness as an advocate to refer to Chase as having the right to use the "free" "press" suggests that he knew his audience would accept the argument.

[3.] People v. Judah (1823)

In People v. Judah, Samuel Judah, the apparently nineteen-year-old author of a self-published, book-length poem called Gotham and the Gothamites, was prosecuted for libeling various noted New Yorkers in the poem. Though the defendant had written and published some plays, the category "playwright" would likely not have been considered part of the press-as-industry. Playwrights of the era chiefly wrote as a sideline to their normal occupations and published as a sideline to trying to get their plays staged. Nor is it likely that Gotham and the Gothamites itself, a self-published poem mocking local notables, would have been a viable commercial venture for the author. Moreover, even if Judah had been seen as a professional book author, it's not clear that this would have made him a member of the press-as-industry.

Yet the court thought it necessary to instruct the jury about the liberty of the press, though stressing that such liberty was limited to examining the character of candidates for public office and did not include "invad[ing] the sanctity of private repose." Likewise, when pronouncing sentence, the court again mentioned the liberty of the press, but reasoned that the punishment imposed on Judah did not violate the liberty because his libels were an abuse of the liberty.

[4.] People v. Simons, Commonwealth v. Blanding, In re Austin, Commonwealth v. Thomson, and Taylor v. Delavan

These five cases all involved materials submitted to newspapers—as a paid ad, as a letter to the editor, or as a similar submission—by people who were not publishers, editors, or employees of the newspaper.

[a.] People v. Simons (1823)

People v. Simons involved a newspaper advertisement bought by defendants, businessmen who accused two other businessmen of being insolvent. Defendants were prosecuted for criminal libel, and appealed to the liberty of the press secured by the New York Constitution's Bill of Rights. The prosecution acknowledged the applicability of the constitutional provision, but argued that the provision was limited to "publication … made with good motives, and for justifiable ends." [The protections for freedom of the press during that era were narrower than they are today.] The court instructed the jury about the constitutional provision, echoing the prosecution's point. The jury acquitted.

The reporter's note following Simons was consistent with the court's implicit assumption that businessmen buying an advertisement were protected by the "liberty of the press." "In this country," the note said, "every man may publish temperate investigations of the nature and forms of government." "It has always been a favourite privilege of the American citizen" (a "right … guaranteed to us by the constitution") "to investigate the tendency of public measures, and the character and conduct of public men."

[b.] Commonwealth v. Blanding (1825)

In Commonwealth v. Blanding, James Blanding—a farmer and the city clerk—was convicted of libeling someone by submitting an item for publication in a newspaper. The appellate court rejected Blanding's freedom of the press argument, but only because it concluded that libels weren't covered by the freedom of the press, and because the freedom of the press was only a freedom from prior restraint: "The liberty of the press was to be unrestrained, but he who used it was to be responsible in case of its abuse; like the right to keep fire arms, which does not protect him who uses them for annoyance or destruction." [Again, the protections for freedom of the press during that era were substantively narrower than they are now; but even then, there was no suggestion that professional journalists had any greater constitutional protections than others.]

[c.] In re Austin (1835)

The court in In re Austin reversed the disbarment of several lawyers who had submitted to a newspaper an open letter urging a judge to resign. The Pennsylvania Supreme Court concluded that a lawyer may be disciplined for "scrutiny into the official conduct of the judges" only when such scrutiny was libelous, which at the time was seen as turning on the author's motive. And "when thus limited" to libel, the court concluded, the possibility of "professional responsibility for libel" does not "impinge on the liberty of the press," precisely because everyone, lawyer or not, could be legally punished for libel. The non-press-as-industry lawyer authors in this case were thus seen as potentially protected by "the liberty of the press" on precisely the same terms as others were.

[d.] Commonwealth v. Thomson (1839)

In Commonwealth v. Thomson, Thomson—an herbalist who claimed to have invented a new system for treating diseases—placed an advertisement in a newspaper denouncing as an impostor another doctor who was claiming to practice the same system. Thomson was prosecuted for libel, and his lawyers argued that he was protected by the liberty of the press. The judge's instructions to the jury mentioned the liberty of the press, but stated that libel law did not violate that liberty. The jury convicted.

[e.] Taylor v. Delavan (1840)

The defendant in Taylor v. Delavan was a temperance activist who submitted an item for publication in a newspaper, alleging that a local brewer was using dirty water to brew his beer. The brewer sued for libel. The judge's instructions to the jury noted that the law "affords to every citizen the free use of the press to publish for the information or protection of the public," but also "restrains this liberty by requiring an adherence to truth." The jury acquitted.

[5.] Brandreth v. Lance (1839)

Brandreth v. Lance was the first American court decision to strike down an injunction as an unconstitutional interference with the freedom of the press. Lance was a business rival of Brandreth, who commissioned a man named Trust to write an allegedly libelous biography of Brandreth and then contracted with a printer named Hodges to publish it. Brandreth asked for, and got, an injunction barring businessman Lance, writer Trust, and printer Hodges from publishing the biography. The New York Chancery Court reversed, holding that the injunction violated the liberty of the press. Nothing in the court's opinion suggested that the liberty of the press was a right that belonged only to printer Hodges; the injunction was dissolved as to all defendants, including Trust and Lance.

[* * *]

All these cases suggest that the "freedom of the press" was seen as applicable not just to newspapermen, but also to ministers, politicians, businessmen, physicians, and others. One or another of the cases might be seen as an anomaly (for instance, because a particular defendant might have been viewed by the court as being closely enough linked to the press). But put together, these cases suggest that the press-as-technology model was widely accepted, and that there was nothing controversial about discussing the freedom of the press as belonging to people who weren't members of the press-as-industry.